Maher et al. v. Barton,III et al.

Filing 29

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that plaintiffs motion for an award of attorneys fees and costs [Doc. # 22 ] is granted in part and denied in part. IT IS FURTHER ORDERED that defendants shall pay to plaintiffs $4,284.00 for attorneys fees and $600.00 for costs. Signed by District Judge Carol E. Jackson on 4/2/14. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DONALD MAHER, et al.,
Plaintiffs,
vs.
DENNIS J. BARTON, III, et al.,
Defendants.

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Case No. 4:13-CV-2260 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court on plaintiffs’ motion for an award of attorney’s
fees and costs. Defendants have filed a response in opposition,1 and the issues are
fully briefed.
I.

Background

Plaintiffs Donald and Tina Maher filed this suit on November 13, 2013, alleging
that defendants, debt collectors, wrongfully garnished their wages after receiving
notice that plaintiffs had filed for bankruptcy. Plaintiffs brought claims under the Fair
Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692, et seq., and Missouri law.
Two of the four defendants answered the complaint on January 13, 2014. On January
30, 2014, all defendants made an offer of judgment pursuant to Fed.R.Civ.P. 68 in the
amount of $2,399.63, in addition to costs and reasonable attorney’s fees. The offer
specified that, if the parties could not agree on an amount of attorney’s fees, that
amount would be determined by the Court.
Plaintiffs accepted defendants’ offer of judgment on February 7, 2014. They
now seek an award of $11,220.00 in attorney’s fees, representing 37.4 hours of work
1

Defendants Consumer Adjustment Company, Inc. and Roger Weiss joined and adopted
the Memorandum in Opposition filed by defendants Dennis J. Barton, III and the Barton Law
Group, LLC. See Doc. #27.

at a rate of $300.00 per hour, and $600.00 in costs. Defendants do not challenge
plaintiffs’ request for costs, but object to the amount of fees requested as excessive.
They propose that plaintiffs’ attorney be compensated for 10 hours of work at a rate
of $270.00 per hour, for a total award of $2,700.00.
II.

Discussion

The FDCPA awards “the costs of the action, together with a reasonable
attorney’s fee as determined by the court” to a prevailing party.

15 U.S.C. §

1692k(a)(3). To determine if the fees requested are reasonable, the Court looks to the
lodestar method of fee calculation, which is “generally applicable to all cases in which
Congress has authorized an award of fees to a ‘prevailing party.’” Hensley v. Eckhart,
461 U.S. 424, 433 n. 7 (1983). To arrive at the lodestar figure, the number of hours
reasonably expended on the litigation is multiplied by a reasonable hourly rate. Id. at
433-34.
A.

Hourly Rate

“As a general rule, a reasonable hourly rate is the prevailing market rate, that
is, ‘the ordinary rate for similar work in the community where the case has been
litigated.’” Moysis v. DTG Datanet, 278 F.3d 819, 828-29 (8th Cir. 2002) (quoting
Emery v. Hunt, 272 F.3d 1042, 1047 (8th Cir. 2001)). An attorney must “produce
satisfactory evidence - in addition to the attorney’s own affidavits - that the requested
rates are in line with those prevailing in the community for similar services by lawyers
of reasonably comparable skill, experience and reputation.” Blum v. Stenson, 465 U.S.
886, 896 n. 11 (1984). “When determining reasonable hourly rates, district courts
may rely on their own experience and knowledge of prevailing market rates.” Hanig

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v. Lee, 415 F.3d 822, 825 (8th Cir. 2005) (citing Warnock v. Archer, 397 F.3d 1024,
1027 (8th Cir. 2004)).
Plaintiffs were represented by attorney Dominic M. Pontello, and seek to recover
fees at a rate of $300.00 per hour. In an affidavit submitted in support of the motion
for fees, Mr. Pontello states that was admitted to practice law in Missouri in 2008. He
worked on consumer bankruptcy cases at Castle Law Office of St. Louis, P.C., until he
opened his own firm, Pontello Law, LLC, in 2011. He works primarily on consumer
bankruptcy and FDCPA litigation. [Doc. #23-4].
Plaintiffs point to a 2010-2011 United States Consumer Law Attorney Fee Survey
Report, finding the average hourly billing rate for an attorney at a small consumer law
firm in Missouri was $330.00 in 2011. Plaintiffs also cite to a recent FDCPA case in
state court awarding Mr. Pontello fees at the rate specified in his retainer agreement,
$475.00 per hour [Doc. #23-1], and FDCPA cases in this district awarding fees of up
to $295.00 per hour. See Conway v. Specified Credit Assn. 1, Inc., 4:13-CV-1821
(CEJ), 2014 WL 51024, at *2 (E.D. Mo. Jan. 7, 2014) (finding the requested hourly
rate of $305.00 for an attorney who had practiced consumer litigation since 2002 to
be excessive, and awarding $295.00 per hour); Penning v. Allstate Fin. Servs., Inc.,
4:10-CV-1398 (AGF), 2011 WL 766387, at *1 (E.D. Mo. Feb. 25, 2011) (awarding fees
of $265.00 per hour); Batchelor v. Profile Recovery Grp., LLC., 4:10-CV-1502 (AGF),
2011 WL 766389, at *1 (E.D. Mo. Feb. 25, 2011) (awarding fees at rates as high as
$275.00 per hour).
Considering the evidence presented by plaintiffs, and drawing from the Court’s
own experience and knowledge of prevailing market rates, the Court concludes that
the requested hourly rate of $300.00 is excessive for an attorney of Mr. Pontello’s skill

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and experience. Instead, the appropriate hourly rate for the services performed by Mr.
Pontello in this case is $280.00.
B.

Hours Expended

Plaintiffs’ counsel seeks an award for 37.4 hours of work. That is an
unreasonable request. This relatively straight-forward FDCPA case was in its infancy
when it was resolved. Plaintiffs filed their complaint in November 2013, and accepted
defendants’ offer of judgment in February 2014. The only document filed by plaintiffs
prior to their acceptance of the offer of judgment was the complaint. No motions were
filed requiring briefing, a scheduling conference had yet to occur, and initial discovery
had not yet begun.
The billing records submitted in support of plaintiffs’ motion for fees [Doc. #232] show the time spent on many tasks was excessive and unnecessary. For example,
plaintiffs’ counsel devoted eleven hours to this case prior to drafting the complaint.
This time was spent speaking with the referring attorney, traveling to meet the
plaintiffs, meeting with the plaintiffs, and investigating plaintiffs’ underlying bankruptcy
case and the assignment of plaintiffs’ debt.2 Considering the relative simplicity of this
case, the amount of time spent discussing and investigating plaintiffs’ claims is
unreasonable. Moreover, while courts in this district generally allow an award for
reasonable attorney travel time at the full hourly rate, the travel time billed in this case
is not reasonable. See Rose Confections, Inc. v. Ambrosia Chocolate Co., 816 F.2d
381, 396 (8th Cir. 1987) (stating that recovery of full hourly rate for attorney travel
time is permitted unless the district court determines in its discretion that such
2

Counsel’s billing records reflect that he spent one hour on the telephone with the
referring attorney, drove one hour to meet with plaintiffs, spent two hours in an initial
consultation with plaintiffs, and spent one hour driving back to his office. He then spent a total
of six hours investigating plaintiffs’ claims. [Doc. #23-2].

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recovery would be unreasonable). Unlike a deposition or court appearance requiring
travel, an initial consultation with clients could easily be held in counsel’s office.
The billing records reflect that it took plaintiffs’ counsel four hours to draft the
complaint, three hours to review and revise it, five hours to prepare the exhibits
attached to it, two hours to file it, one hour to forward the summonses to the process
servers, and one hour to discuss the filing of the complaint with plaintiffs. The time
spent on these tasks is excessive. The complaint is ten pages long, and the four claims
asserted are not complex, and do not merit seven hours of drafting and editing. Many
of the exhibits filed in conjunction with the complaint are documents from the
underlying collection and bankruptcy cases. Preparation of these documents should
not take five hours.
Plaintiffs’ counsel billed two hours for discovery on December 13, 2013. At that
time, defendants had not yet filed an answer, nor had a case management order been
entered.

The Court will not award fees for time spent engaging in premature

discovery.
Finally, plaintiffs’ counsel billed several hours after receiving service of the offer
of judgment. An offer of judgment is generally treated as an offer to make a contract.
Hennessy v. Daniels Law Office, 270 F.3d 551, 553 (8th Cir. 2001). “When an offer
of judgment unambiguously limits recovery of attorney’s fees, courts should honor that
limitation.” Stephens v. Cirrincione, No. 11 C 6354, 2012 WL 2872448, at *3 (N.D. Ill.
July 11, 2012). Here, the offer of judgment states that “Plaintiffs’ reasonable court
costs and reasonable attorney’s fees, now accrued and in connection with Plaintiffs’
prosecution of the claims made in Plaintiffs’ Complaint against Defendants in this
action, are to be added to the Judgment against Defendants....” [Doc. #20-1]

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(emphasis added). This statement is unambiguous. Plaintiffs’ counsel will not be
awarded fees accrued after service of the offer.
From the requested 37.4 hours, the Court will subtract the hours billed after the
offer of judgment (2.8), the hours billed for travel (2), and the hours billed for
premature discovery (2). From the remaining entries in the billing records (totaling
30.6 hours), the Court will apply a 50% percentage reduction to adjust for the
excessive billing for allowable expenses, in lieu of making line-by-line cuts. Applying
the deductions described above, the total compensable time is 15.3 hours, at the
hourly rate of $280, for a total award of $4,284.00 for attorney’s fees. This lodestar
figure accurately captures the quality of the services rendered and the favorable result
obtained by plaintiffs’ counsel.
Plaintiffs also seek taxable costs in the amount of $600.00. Defendants do not
oppose these costs and they will be allowed.
Accordingly,
IT IS HEREBY ORDERED that plaintiffs’ motion for an award of attorney’s fees
and costs [Doc. #22] is granted in part and denied in part.
IT IS FURTHER ORDERED that defendants shall pay to plaintiffs $4,284.00 for
attorney’s fees and $600.00 for costs.

___________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 2nd day of April, 2014.

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